Judge questions new curb on detainees’ lawyers

Posted Mon, August 20th, 2012 6:21 pm by Lyle Denniston

In a federal court hearing that fully disclosed the deepening level of distrust between the military officers who run the Navy’s prison at Guantanamo Bay, and the volunteer lawyers who represent the detainees there, the presiding judge reacted with obvious skepticism to the military’s new move to curb those lawyers’ activities there.

Chief Judge Royce C. Lamberth started the hearing in Washington on Friday wondering why the current situation needed fixing “if it ain’t broke.” And, near the end, he questioned the need to “start all over back at square one.” At issue is the now eight-year-old regime that governs when a detainee lawyer can get together with a client at Guantanamo. That procedure is now overseen by thirteen federal judges in Washington; the Obama Administration wants to shift control to the military commander at the prison site.

As the hearing unfolded, a government lawyer suggested darkly that detainees’ lawyers have brought unspecified “contraband” into their meetings with clients at the Naval prison, and argued that intensifying activities in prosecuting war crimes cases there are raising new security fears among military officers, with many more lawyers in their midst. Answering those expressions of distrust, lawyers for detainees countered that the government cannot be trusted to keep its word even if it promises not to interfere with legal representation; they cited shifting details of lawyer curbs as well as the government’s more fully expressed doubts that some of the detainees have any remaining right to a lawyer.

“‘Counsel visits [to Guantanamo] are a burden on the resources and manpower of Guantanamo Bay to provide accommodations for counsel and on security personnel to ensure the safety of counsel and their good behavior as well,” Justice Department attorney James J. Gilligan said at the hearing. In turn, one of the lawyers for the detainees, New York attorney Rebecca Briggs, contended that “these limitations [on counsel’s access] that are being added in footnotes [in government access rules] just highlight the fact that their assurances to yield their discretion responsibly cannot be taken at face value, unfortunately.”

There is a core legal dispute between the two sides, apart from their mutual suspicions about each other’s motives. At the heart of the legal debate is the meaning of the Supreme Court’s first major ruling in a war-on-terrorism case: Hamdi v. Rumsfeld, in 2004. The detainees’ attorneys contend that the ruling assured those being held by the military as terrorism suspects that they have a continuing right to challenge their detention, and with that comes a right to ongoing access to a lawyer. The Justice Department reads Hamdi entirely differently, contending — as its lawyer did Friday — that the Court simply assumed that detainees had a right to a lawyer “because the government was voluntarily providing the access that Hamdi said he required, and left to another day the legal issue” of whether he had such a right.

In 2004, right after the Hamdi decision, individual district judges in Washington began issing orders assuring the detainees of legal representation. Then, in 2008, the thirteen judges on the District Court got together and agreed on a formal document — technicallly a “protective order” — confirming that detainees would have access to lawyers, and putting limits on how those attorneys could have access to and use classified information that developed as the detainees’ court challenges went forward. Judge Lamberth recalled the process of working out that order with the lawyers, and noted pointedly that neither side had challenged it on appeal. He also said, at least at the beginning of the hearing, that he was not yet persuaded that it had not worked as intended.

At the hearing, it became even more obvious that the two sides disagree fundamentally about what that 2008 order guaranteed. The detainees’ counsel said it provides ongoing representation rights, under the supervision of the individual district judges, and those rights do not lapse just because a detainee loses the first round in a challenge in habeas court, or just because a detainee has temporarily abandoned a challenge. They view the order as assuring that, in order to go on representing their clients, they must have unimpeded access. By contrast, the government’s lawyers said it only assured access to a lawyer for purposes of the habeas challenges then pending, and so assured access “terminates” if the detainee loses the first challenge or drops it for whatever reason.

As government lawyers pressed their argument on Friday, Judge Lamberth told them that he had interpreted their briefs in the case to concede that detainees do have a constitutional right to counsel, and noted that that was considerably different from what they were saying in court: that is that they were only willing to let the judge “assume” for purposes of this hearing that detainees do have some right to counsel, but that the government has not conceded the point as a legal matter.

For those detainees who have lost their first round in habeas, or have withdrawn it, the government is now taking the position that they have less need for an attorney. So, for those detainees, it is seeking to install a new regime: no lawyer will be allowed to visit a client at Guantanamo unless that lawyer agrees explicitly to sign a new “memorandum of understanding” that gives the military commander at Guantanamo complete discretion to deny a lawyer access to a client, if the needs of the base required that, and that significantly restricts the use that counsel can make of classified information that has developed in the habeas proceedings. Lawyers for the six detainees whose cases were in court Friday have refused to sign the new memorandum (or “MOU” as it is now routinely called) and thus have no access to their clients, if the clients do not have a currently pending, still-live habeas challenge.

Government lawyers argued at the hearing that the new MOU is virtually identical to the 2008 protective order, but the detainees’ counsel vigorously contested that, saying it not only would shift the control entirely away from the courts to the military, but also would restrict the kind of legal representation they could provide for a detainee whose court case was deemed to have been “terminated.” They thus want the judge to keep the 2008 order intact, while the government wants to shift to the MOU regime for “terminated” cases.

At the hearing, Judge Lamberth drew from the government lawyers an admission of a key limitation on counsel in those “terminated” cases. The detainees would have access to their lawyers, in such a case, if their lawyer were virtually ready to file a new habeas challenge — in other words, the counsel was close enough to filing a specific new challenge so that it could be deemed “imminent.” Short of that situation, the lawyers would not need access, according to the government argument, because that access is keyed only to representation in court, not ongoing legal counseling.

Challenging that approach, the detainees’ lawyers said that legal representation does not have a starting and stopping point, but has to be continuing. That is especially true, they said, since the situation in global terrorism is constantly changing, and yet detainees imprisoned at Guantanamo do not have any way of keeping up with what their legal rights may be in that changing environment, unless they have access to lawyers — their only contacts other than their jailers at Guantanamo. They contended that the government was attempting to give the jailers the final say on counsel access, and argued that that runs counter to the core understanding of habeas rights.

Judge Lamberth gave no indication of when he would rule on the counsel access question. He has assigned himself the task of sorting it out, without the involvement of the other district court judges, some of whom have explicitly deferred to him on it. The controversy is now proceeding under District Court docket 12-398, In re Guantanamo Bay Detainee Continued Access to Counsel.

(NOTE TO READERS: The author of this post did not attend the Friday hearing. The post is based on the court reporter’s transcript. It is not yet available in electronic format, but may be obtained from the District Court in Washington.)

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